January 21, 2026
At its January 14, 2026 Agenda Meeting, the Texas Commission on Environmental Quality (“TCEQ”) revised its compliance history rules in Title 30 Chapter 60 of the Texas Administrative Code (“TAC”). The rulemaking adopts legislative changes to section 5.754 of the Texas Water Code arising from Senate Bill 1397 out of the 88th Texas Legislative Session and Sunset Advisory Commission recommendations. The bill, authored by State Senator Charles Schwertner, received overwhelming bipartisan support. The anticipated effective date of the rules is February 5, 2026, or 20 days after Texas Register publication.
This change directly impacts potential repeat violators. Moving forward, the Commission will consider three tiers of violations for repeat offenders: minor, moderate, and major. Prior to the change, the Commission only evaluated major violations of the same media that occurred in the previous five years. Now, the Commission will consider and assess minor, moderate, and major violations of the same nature that occurred in the five-year compliance period.
Another feature of this rulemaking updates the compliance history formula to ensure adequate consideration of the complexity of facilities as part of calculating the ratings. Complexity points within the formula and updated point thresholds will determine the category of repeat violator classification. The number of categories has increased from two to five. Each level of violation holds a different numerical value, with minor violations being 2 points, moderate violations counting for 10 points, and major violations being 50 points. The commission will consider a facility’s complexity points and repeat violation points in determining repeat violator status. Larger (and more complex) facilities are allowed greater grace than less complex facilities.
Another important change comes in the increase in the frequency of compliance history calculations to twice a year. Historically, compliance histories were calculated and updated annually. The Sunset Advisory Commission recommended increasing the frequency to a semi-annual basis. Moving forward, compliance histories will be calculated on March 1st and September 1st of each year.
The rule adoption also changes 30 TAC § 60.1(b) for calculation of compliance period for enforcement actions. For alleged repeat violators, the review for compliance history ratings still looks back five years to calculate their score. However, the date from which the five-year period is triggered has changed. Now, the operative date will be the date of the initial enforcement screening. Previously, the rule considered the five prior years from the date the agency mailed an enforcement settlement offer or the date a petition was drafted, whichever occurred first. Complex enforcement settlement offers can take significant time to develop until a settlement offer is mailed, meaning compliance history ratings could change prior to the settlement offer being finalized.
This change more accurately reflects a permitee’s performance and compliance with rules and regulations at the time an enforcement action begins. This provides permitees greater clarity regarding their compliance than was previously afforded. Practically speaking, this change provides both permittees and the agency more clarity on the exact window of time that matters for compliance history during an enforcement action.
Other significant changes from the bill include requiring electronic publication of permit applications on the TCEQ website. Public notices will also now be available on the TCEQ website and may now be sent via email to interested parties.
Impact to Applicants:
How will these changes in the law impact applicants? Applicants should anticipate the online posting of applications and notices will result in an increase in application protests and, therefore, more contested case hearings. Regulated entities should be aware of the changes in both compliance history calculation frequency as well as the formula for repeat violators. If you have questions about this article, or the firm’s experience working on compliance and TCEQ-related matters, contact the author Bobby Salehi at [email protected].
Author: Bobby Salehi
Bobby Salehi proudly represents a wide range of clients in many areas of administrative law, with a focus in environmental and regulatory litigation.